Yesterday, I took a whack at the nonsense idea that asserting sovereign immunity as a defense to a lawsuit represented some kind of power grab by the Obama administration. As I was talking with a colleague about this ridiculous story, we had a good chuckle over the clueless folks who were bothered by the fact that government lawyers even raised the legally valid defense in the first place. Since then, a dKos diarist wrote a pretty good post explaining that government lawyers are not at liberty to just not raise legally valid defenses to civil suits because they believe in full disclosure. Government lawyers have ethical obligations, too, and they include defending a client to the best of their ability. The dKos diarist stopped short of stating the full truth of the matter: willfully failing to raise a valid grounds to dismiss a legal case against your client is a pretty clear-cut case of legal malpractice.
Glenns Greenwald, who allegedly used to be actual, licensed attorneys, responded to this eminently reasonable post as follows:
But where — as here — Obama embraces the very same extremist secrecy and immunity powers which provoked such intense criticism when Bush claimed those powers, any minimally honest person will react how Booman did. It is simply impossible for X to have been a hallmark of lawless tyranny when Bush did it but an understandable or tolerable action (or, worse, a routine fulfillment of one’s duties) when Obama does it.
It is sad, in a sense, that a guy(s) who is smart enough to string together coherent paragraphs like Greenwalds is so incapable of viewing things outside the frame of reference of George W. Bush that he cannot even remember the basic tenets of a profession he once put in a lot of work to join. If you, as a lawyer (even a government lawyer), have a client that gets sued for actual damages, punitive damages, and an injunction, and a legally valid grounds to dismiss the case occurs to you, you file a motion to dismiss the claim, period. If your boss (in this case, the President), is inclined to come clean about the details of the Bush administration surveillance programs, he can certainly do so at nearly zero taxpayer expense through the simple expedience of calling a press conference and laying it all out. There is nothing whatsoever that says that Obama has to demonstrate his penance for the program by permitting an expensive lawsuit that will absorb government resources and time, and cost taxpayer money, when a perfectly reasonable grounds for dismissal exists.
Between yesterday and today, I took the time to read the Government’s motion to dismiss. As it happens, I have had the misfortune of litigating the Wiretap Act before, so I was pretty familiar with the arcane statutory scheme under consideration. I’m not sure that the Government’s argument is a winner (It is not an obvious conclusion that “willful violation” in 223(c)(1) does not encompass “use” in 223(a)(3) as well as “disclosure”), but it is clear that it is reasonable. In light of the indisputable (by everyone other than Olbermann and other leftists who are clueless about the law, some crackpot law professor from GWU and Greenwalds) presumption that the Government is immune from suit in the absence of a clear and express waiver, the DoJ really had no choice at all but to raise this defense. Anyone who says otherwise simply does not understand how lawyers are supposed to do their jobs.
Greenwalds sees the ignorant caterwauling by his brothers-in-arms on the left as evidence that leftists are more intellectually honest. He contrasts their clearly erroneous and unfounded complaints with the DoJ’s actions with the way the right “turned itself into a virtual cult of uncritical reverence for George W. Bush especially during the first several years of his administration[.]” Handily for Greenwalds, the blogosphere was in large part not around or active for the first few years of Bush, or some person might find dozens of links from conservative bloggers railing to the high heavens about No Child Left Behind, McCain-Feingold, Medicare Part D, or a host of other Bush actions. Any person possessed of minimal google competence can find out whether the right was a “cult of uncritical reverence” for Bush during the fight on immigration reform, or his nomination of Harriet Miers to the Supreme Court.
See, Glenns, the real difference between the left and the right is this: when the right criticized Bush, we actually had a point. I suppose it is your prerogative to be proud of the left just because they criticize Obama at all, but personally I’d wait until they weren’t beclowning themselves in the process before I crowed so much. Of course, in order to do that, I’d have to not hate Bush so much that I was able to think critically about subjects that even tangentially touched upon his Presidency; and in Greenwalds’ case, that is an impossibility.